Citation Nr: 0302003
Decision Date: 01/31/03 Archive Date: 02/07/03
DOCKET NO. 98-12 307A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to an initial disability evaluation in excess of
50 percent for post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky, Associate Counsel
INTRODUCTION
The veteran had active service from January 1966 to November
1967.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from rating decisions of the Department
of Veterans Affairs (VA) Regional Office in St. Louis,
Missouri (RO) which granted service connection for PTSD and
assigned a 50 percent disability evaluation.
In a May 2000 Board decision, the issue of the propriety of
the 30 percent disability evaluation then in effect was
remanded for additional development. The development was
accomplished to the extent possible, and by rating decision
of October 2002, the 30 percent rating for PTSD was increased
to 50 percent. The case has now been returned to the Board
for adjudication.
FINDINGS OF FACT
1. The veteran was notified of the evidence needed to
substantiate his claim, and all relevant evidence necessary
for an equitable disposition of this appeal has been
obtained.
2. The veteran's PTSD is not productive of a severely
impaired ability to establish and maintain effective
relationships with people or such severe psychoneurotic
symptoms that there is severe impairment in the ability to
obtain and retain employment.
3. The veteran's PTSD is not productive of occupational and
social impairment with deficiencies in most areas, due to
symptoms such as: homicidal ideation, obsessive rituals;
obscure, illogical, or irrelevant speech; near-continuous
panic or depression affecting the ability to function
independently; spatial disorientation; neglect of personal
appearance and hygiene; impaired impulse control; and an
inability to establish and maintain effective relationships.
CONCLUSION OF LAW
The criteria for an initial disability evaluation in excess
of 50 percent for PTSD have not been met. 38 U.S.C.A.
§§ 1155, 5103A, 5107(b) (West 1991 & Supp. 2001); 66 Fed.
Reg. 45,620, 45,630-32 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. §§ 3.102, 3.159); 38 C.F.R. §§ 3.321,
4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2002); 38 C.F.R.
§ 4.132, Diagnostic Code 9411 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran essentially contends that the current disability
evaluation for his PTSD does not accurately reflect the
severity of that disability. Specifically, the veteran
asserts that he is entitled to higher disability evaluations
because he experiences depression, irritability, sleep
impairment, and social and occupational impairment.
As a preliminary matter, in November 2000, the Veterans
Claims Assistance Act of 2000 (VCAA) became law. The VCAA
applies to all claims for VA benefits and provides, among
other things, that VA shall make reasonable efforts to notify
a claimant of the evidence necessary to substantiate a claim
for benefits under laws administered by VA. The VCAA also
requires VA to assist a claimant in obtaining that evidence.
See 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002); 66 Fed.
Reg. 45, 630 (Aug. 29, 2001) (to be codified at 38 C.F.R. §
3.159).
First, VA has a duty under the VCAA to notify the veteran and
his representative of any information and evidence needed to
substantiate and complete his claim. The rating decisions,
the statement of the case, and the supplemental statement of
the case issued in connection with the veteran's appeal, as
well as additional correspondence to the veteran, have
notified him of the evidence considered, the pertinent laws
and regulations, and the reason that his claim was denied.
The RO indicated that they would review the information of
record and determine what additional information is needed to
process the veteran's claim. The RO also informed the
veteran of what the evidence must show in order to warrant
entitlement an increased disability evaluation and provided a
detailed explanation of why an increased disability
evaluation was not granted. In addition, the statement of
the case and supplemental statement of the case included the
criteria for granting an increased disability evaluation, as
well as other regulations pertaining to his claim. Letters
to the veteran, from the RO, notified the veteran as to what
kind of information they needed from him, and what he could
do to help his claim. See Quartuccio v. Principi, 16 Vet.
App. 183,187 (2002) (requiring VA to notify the veteran of
what evidence he was required to provide and what evidence
the VA would attempt to obtain). Accordingly, the Board
finds that the notification requirements of the VCAA have
been satisfied.
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate his claim. In this
regard, the veteran's service medical records, VA medical
records, and private medical records have been obtained. In
addition, the veteran was afforded several VA examinations
and a hearing before the RO. The veteran and his
representative have not made the Board aware of any
additional evidence that should be obtained prior to
appellate review, and the Board is satisfied that the
requirements under the VCAA have been met. As such, the
Board finds that the duty to assist has been satisfied and
the case is ready for appellate review. See Bernard v.
Brown, 4 Vet. App. 384, 392-394 (1993). See also VAOPGCPREC
16-92.
Disability ratings are determined by evaluating the extent to
which a veteran's service-connected disability adversely
affects his or her ability to function under the ordinary
conditions of daily life, including employment, by comparing
his or her symptomatology with the criteria set forth in the
Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1. If two ratings are potentially applicable,
the higher rating will be assigned if the disability more
nearly approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. See 38 C.F.R.
§ 4.7. Any reasonable doubt regarding the degree of
disability will be resolved in favor of the veteran. See
38 C.F.R. § 4.3.
Furthermore, a disability rating may require re-evaluation in
accordance with changes in a veteran's condition. Thus, it
is essential that the disability be considered in the context
of the entire recorded history when determining the level of
current impairment. See 38 C.F.R. § 4.1. In addition, where
an award of service connection for a disability has been
granted and the assignment of an initial evaluation for that
disability is disputed, separate evaluations may be assigned
for separate periods of time based on the facts found. In
other words, evaluations may be "staged." See Fenderson v.
West, 12 Vet. App. 119, 126 (1999). In this case, the issue
on appeal stems from an initial grant of service connection
and the assignment of a 50 percent disability evaluation for
the veteran's PTSD.
Historically, a November 1996 rating decision granted service
connection for the veteran's PTSD, and assigned a 10 percent
disability evaluation, effective September 1996. The veteran
filed a notice of disagreement, and in an October 1997 rating
decision, the RO increased the veteran's disability
evaluation to 30 percent disabling, effective September 1996.
A June 1998 rating decision continued the veteran's 30
percent disability evaluation, and the veteran submitted a
notice of disagreement. The RO issued a statement of the
case in July 1998, and the veteran perfected his appeal in
August 1998.
In May 2000, as discussed earlier, the Board remanded the
veteran's claim for additional development. Following the
completion of the requested development to the extent
possible, the RO issued a rating decision and supplemental
statement of the case in October 1992, increasing the
veteran's disability evaluation to 50 percent disabling,
again effective September 1996. As the 50 percent disability
evaluation is less than the maximum percentage rating
available under the applicable Diagnostic Code, the veteran's
claim for an increased evaluation remains valid on appeal.
See Fenderson, supra; AB v. Brown, 6 Vet. App. 35, 38 (1993).
The pertinent evidence of record consists of VA medical
records, private medical records, VA examination reports, lay
statements, and a transcript of the veteran's testimony at a
February 1999 hearing before the RO.
A May 1996 VA psychiatric evaluation indicates that the
veteran complained of depression and irritability for five to
six years. He also complained of sleep problems since
Vietnam, slowed thought and action, agitation, fatigue,
diminished self-esteem, feelings of guilt, difficulty
concentrating at work because he did not like what he did,
and thoughts of death. He reported that he thought of
Vietnam daily, had nightmares and flashbacks upon awakening,
and experienced hyperstartle reactions. He also reported
that he did not like to go to "tightly enclosed area[s]."
The veteran also related that he used alcohol to relieve PTSD
symptoms, but it sometimes "magnifie[d the] problems."
Mental status examination indicated that his affect was
congruent with his expressed emotions. There was no evidence
of a thought disorder, hallucinations or delusions, or
psychosis. He was oriented. He was not suicidal or
homicidal. The diagnoses were PTSD and secondary major
depression. A Global Assessment of Functioning (GAF) score
of 38 was assigned for the veteran's mood, sleep impairment,
and avoidance, as well as his problems in his employment and
marriage.
A May 1996 VA treatment note from a social worker indicates
that the veteran reported that he was happily married for 25
years, with a son. He also reported that he drank three
cases of beer per week, but that he felt it was not a
problem, as it helped him sleep. He complained of anger and
depression, and that he had thought about suicide.
The veteran was first afforded a VA examination in connection
with his claim in October 1996. According to the report, the
veteran complained of difficulty sleeping, nightmares,
hypervigilance, hyperstartle reaction, irritability, and
intrusive memories of Vietnam. He reported that he was
married and that he worked as a cellular phone salesman.
Mental status examination showed that the veteran was
oriented and well groomed, with a flat affect and a somewhat
depressed mood. He was soft-spoken and had a relevant and
goal-directed thought process. He denied delusions and
hallucinations, as well as suicidal and homicidal ideation.
His short-term and long-term memory was intact, his judgment
was intact, and the veteran had good insight. The diagnosis
was PTSD and a GAF score of 50 was assigned for some social
impairment, but no occupational impairment. The examiner
opined that the veteran was able to maintain productive
employment, and only slightly impaired.
The veteran was afforded a second VA examination in September
1997, wherein he complained of anxiety and irritability, as
well as nightmares and difficulty sleeping. He reported that
his job as a cellular phone salesman was not that stressful.
Examination showed that the veteran was well groomed and
oriented. He had relevant, logical, and goal-directed speech
and thought process. There was no evidence of hallucinations
or delusions, and he denied suicidal or homicidal ideation.
His memory was intact, as was his judgment. He had good
insight and was motivated to remain productive. A social and
industrial survey indicates that the veteran belonged to the
VFW, but did not attend meetings; visited with long-time
friend once a month; attended church; watched television;
played with his dogs; maintained his car; and helped his wife
with household chores. His occupational involvement was
limited to working from 9 to 5 at a job selling cellular
phones, which he had been doing for a year. Prior to that,
he sold x-ray and electronic equipment, but he reported that
he found it too stressful, as it was more competitive and
required travel. The diagnosis was PTSD and a GAF score of
40 was assigned for flashbacks, intrusive memories,
diminished efficiency as a worker, and social isolation. The
examiner opined that the veteran had a fair prognosis,
because the veteran could maintain employment.
A September 1997 letter from H. R. Davidson, Ph.D. indicates
that the veteran was diagnosed with PTSD with chronic
depression, anxiety, explosive personality disorder, and
paranoid behaviors. Dr. Davidson opined that the veteran was
75 percent disabled, and occupationally and socially
impaired, with frequent job losses due to reduced reliability
and productivity. Dr. Davidson also stated that the veteran
had a flattened affect with circumlocutory speech, illogical
thinking, poor judgment, suicidal ideation, episodic
agitation, and emotional explosiveness. He also stated that
the veteran had difficulty functioning in stressful
situations, problems with establishing and maintaining
effective relationships, and that the veteran's marriage had
problems. Dr. Davidson indicated that the veteran had
flashbacks and nightmares, as well as panic attacks,
motivation and mood disturbance, and impaired memory. Dr.
Davidson also indicated that the veteran had a history of
alcohol abuse and had reported difficulty sleeping. His
diagnoses were PTSD and explosive personality disorder and
Dr. Davidson indicated that the veteran "maintain[ed] a
facade of productive employment."
A November 1997 VA treatment note indicates that the veteran
tested negative for sleep apnea. The veteran complained of
increasing depression and irritability, insomnia, and
intermittent crying spells and feelings of guilt. He also
complained of decreased energy and concentration, and
reported a past suicidal ideation without plan. He also
reported that he drank two to three cases of beer per week,
but that he did not feel it was a problem. He related that
he had been at his current job for a year, but that he was
"written up" for forgetting an assignment. He described
his relationship with his wife of 26 years and his son as
good, but other relationships as poor. Examination showed
that the veteran was well groomed with good hygiene, normal
speech, intact associations, and tense, but normal
psychomotor activity. The veteran was cooperative, with a
moderately depressed and anxious affect. There was no
evidence of hallucinations or delusions and the veteran
denied suicidal ideation. The impression was major
depressive disorder and PTSD.
A December 1997 treatment note indicates that the veteran was
depressed about his job and that he was withdrawn. The
veteran reported that he was afraid he would lose his temper
and that he was claustrophobic. He also reported that his
sleep improved with medication. Upon examination, he was
intermittently tearful, and significantly anxious and
depressed. The impression was major depressive disorder and
PTSD.
The veteran was afforded another VA examination in March
1998. The report indicates that the veteran complained of
difficulty sleeping, nightmares, and intrusive memories of
Vietnam. He also complained of having poor control of his
emotions, nervousness, and irritability. He reported that he
had become withdrawn and socially isolated, and that he had
been prescribed medication to help him sleep. Mental status
examination showed that the veteran was oriented and well
groomed, with a flat affect and depressed mood. He denied
delusions or hallucinations, as well as suicidal or homicidal
ideation. His memory and judgment were intact, and he had
good insight. The diagnosis was PTSD and a GAF score of 40
was assigned for impaired communication and occupational and
social impairment. His prognosis was guarded to fair due to
a loss of initiative at work and social isolation.
A March 1998 letter from a friend of the veteran's states
that the veteran's "general outlook [over the years
following his service] evolved into . . . a deep, chronic
depression" and that the veteran was never satisfied with
his jobs, and would "drif[t] from one job to another." The
veteran's friend also noted that the veteran had very poor
sleep, as he had difficulty falling asleep and would be
awakened by his nightmares.
A March 1998 letter from the veteran's wife states that the
veteran had impaired sleep, strange eating patterns, and no
structure to his life. She also stated that the veteran had
difficulty keeping a job, experienced flashbacks, and that he
tended to isolate himself.
A May 1998 VA treatment note indicates that the veteran was
concerned about his job because his company was sold. He
reported that he felt calmer, less irritable, and less
depressed since he started on his medication, but that he
still had intermittent insomnia and nightmares. The
impression was major depressive disorder and PTSD.
A July 1998 VA treatment note indicates that the veteran had
fair sleep, intermittent nightmares, fair concentration, and
fleeting suicidal ideation, without plan. He reported that
he kept his job, but that he worked exclusively on
commission.
In September 1998, the veteran reported that he felt better,
despite significant stresses from dealings with the IRS. He
also reported increased nightmares and rumination about an
incident where strangers harassed him. He denied suicidal
and homicidal ideation. He related that he felt his job was
not stable, but that he had not found an alternative. The
impression was major depressive disorder and PTSD.
In January 1999, VA treatment records indicate that the
veteran complained of an intermittently depressed mood,
irritability, and mild "midcycle" insomnia with recurrent
dreams. He expressed dissatisfaction with his job.
A January 1999 statement from his employer stated that the
veteran had worked for his company since June 1998, that he
recognizes that veteran's symptoms as his father-in-law is a
Vietnam veteran, and that he was unsure that he could
continue to employ the veteran due to the veteran's work
record. The veteran's employer stated that the veteran had
"constant panic attacks when more than one customer [was] in
the store."
The veteran was afforded a hearing before the RO in February
1999. According to the transcript, the veteran testified
that he experienced hypervigilance, flashbacks, rage, and
nightmares. He stated that he had nightmares four or five
nights per week, but that he got four to five hours of sleep
per night. He also testified that the flashbacks and
nightmares were causing him marital problems. The veteran
complained of memory loss, stating that he kept forgetting
how to program the cellular phones. He stated that he did
not miss work due to his PTSD, but that he felt
confrontational when customers came in, because he could not
leave the store.
A May 1999 VA treatment note states that the veteran
complained of increased irritability and depression due to
his VA appeal and uncertainty as to his employment. He also
complained of poor sleep and a variable appetite. His
medications were changed.
A June 1999 VA treatment note indicates that the veteran
reported that he was sleeping better and was less irritable
since the medication change, but that he felt "stuck in
[his] job."
In August 1999, he reported that he was able to control his
temper, that he was less irritable, that his sleep was
improved, and that his energy was okay since his medication
was increased. He also reported that his work situation was
stable.
A November 1999 VA treatment note indicates that the veteran
reported improved sleep and that he was otherwise "status
quo" with no problems at his job.
In March 2000, the veteran reported improvement in his sleep,
energy, and irritability, but that his concentration was
decreased, which the examining physician indicated may have
been due to the medication change. He also reported that his
relationship with his wife was "ok."
A July 2000 VA treatment note indicates that the veteran had
a GAF score of 50. The treating provider noted that the
veteran complained of fear and anxiety in hot weather,
because it caused flashbacks to the weather in Vietnam. The
diagnosis was PTSD.
A September 2000 treatment note indicates that the veteran
continued to have a GAF score of 50. During the treatment
session, the veteran discussed how his honesty caused him
problems at his job because he dissuaded a customer from
buying a cell phone. He complained of excessive tiredness
from one of his medications, but the treating provider noted
that the veteran was erratically taking the doses. The
diagnoses were PTSD and major depression.
In October 2000, his GAF score remained at 50. The VA
treating provider noted that the veteran's medication was
being dosed correctly, and better tolerated. Interpersonal
aversions were discussed. The diagnoses were PTSD and major
depression.
A January 2001 VA treatment note indicates that the veteran's
GAF score was 55. The veteran complained that his tinnitus
was making his PTSD symptoms more difficult to cope with.
The treating provider noted that the veteran's alcohol abuse
was becoming an issue, as the veteran was drinking a case of
beer per week. The diagnoses were PTSD and major depression.
In February 2001, his GAF score remained at 55. His
medications were adjusted and the veteran reported that his
drinking was decreased. The diagnosis was PTSD.
An April 2001 treatment note indicates that the veteran's GAF
score was 55, that his medications were fine, and that the
veteran's mood was relatively euthymic. The aggravation of
his PTSD symptoms by his tinnitus was discussed. The
diagnoses were PTSD and major depression.
The veteran was most recently afforded a VA examination in
January 2002. According to the report, the examining
provider noted that the veteran abused alcohol, that the
veteran was on anti-depressant medication, and that the
veteran's claims file was reviewed. The veteran denied being
hospitalized for his PTSD and reported continuing counseling
at the VA Medical Center Mental Health Clinic. The veteran
complained of poor sleep, including trouble falling asleep
and having restless sleep with nightmares. He also
complained of a depressed mood, anxiety, and irritability, as
well as flashbacks. He reported that he was afraid of losing
his job because he was not productive enough. He also
reported that he spent his time watching television and was
not interested in social contacts. He related that his
marriage was having problems because he was uninterested in
doing things with his wife due to his depression and because
of his problems with sleep. He also related a history of
substance abuse, but denied depending on beer, which he
stated helped him sleep. He denied a history of suicide
attempts, but admitted an occasional suicidal ideation. The
examiner opined that the veteran's work performance was
marginal based on the veteran's reported lack of patience
with customers and low productivity, which he felt was due to
the veteran's poor sleep, poor attention, lack of interest,
and low energy, which was in turn due to the veteran's PTSD
and depression. The examiner noted that the veteran had no
interest in social activities and had no recreational
pursuits. Mental status examination showed that the veteran
was well groomed and oriented, with adequate hygiene and a
depressed affect. He had logical and clear speech, with a
goal-directed and unimpaired thought process. He had poor
eye contact. His short-term and long-term memory was intact.
The veteran denied panic attacks and loss of impulse control.
The examiner noted that the veteran had the ability to care
for himself. The examiner also opined that the veteran's
nightmares, flashback, impaired sleep, and depressed mood
interfered with the veteran's productivity at work and
affected his marriage. The diagnosis was PTSD with
depression and persistent flashbacks and nightmares, and
alcohol dependence in remission. A GAF score of 40 was
assigned due to social impairment.
A February 2002 VA treatment note indicated a GAF score of
50. The treating provider noted that the veteran was
"[d]oing fair" and noted that "[s]ome depression [was]
always present. . . ." The veteran was not suicidal. No
changes in medication were indicated. The diagnoses were
PTSD and major depression.
An April 2002 VA treatment note indicated that the veteran
was neatly dressed, with an anxious mood. He discussed how
several of his customers "escalated" his PTSD. He also
complained that he was afraid that he would be unable to
control his anger. The veteran ventilated his frustrations
and stated that he intended to avoid situations where his
anger would be increased.
A May 2002 VA treatment note indicates that the veteran and
his wife reported that the veteran had sleep impairment and
hypervigilance (he jumped when he heard the sudden sound of
firecrackers). The veteran complained of anger and
depression, particularly with "all these conflicts/wars
going on all over the world. . . ." The veteran also
complained that he had problems dealing with people and
feared that he would "go off on people." The veteran also
reported that he continued to sell cellular phones, and that
one of his fellow employees had a father-in-law who was a
Vietnam veteran and allowed the veteran to take breaks when
the veteran has a problem with an angry customer. The
veteran related that he went to church and that he drinks 8
to 10 beers a night, three to four nights per week. He also
related that his medications help him sleep. Mental status
examination indicated that the veteran was well groomed,
alert, and oriented, with less anxiety, coherent speech, and
a goal-directed thought process. The veteran's mood was
moderately depressed, with an appropriate affect. He denied
suicidal or homicidal ideation. There was no evidence of
psychotic symptoms. The impression was chronic PTSD. A GAF
score of 50 was assigned.
The Board notes that, in January 1998 and October 2001, Dr.
Davidson submitted additional letters, essentially
reiterating his statements from the September 1997 letter and
paraphrasing symptomatology from the pertinent rating
criteria.
After the veteran initiated this appeal, the regulations
pertaining to the evaluation of mental disorders were
amended, effective November 7, 1996. See 61 Fed. Reg. 52695-
52702 (1996) (presently codified at 38 C.F.R. §§ 4.125-4.130
(2002)). "[W]here the law or regulation changes after a
claim has been filed or reopened but before . . . the appeal
process has been concluded, the version most favorable to the
appellant should and . . . will apply unless Congress
provided otherwise or permitted the Secretary of Veterans
Affairs (Secretary) to do otherwise and the Secretary did
so." See Karnas v. Derwinski, 1 Vet. App. 308, 312-313
(1991). The RO considered the veteran's claim under both the
former and current version of the regulations pertaining to
mental disorders. In light of the foregoing, the Board will
evaluate the veteran's claim for an increased rating of his
service-connected PTSD in the same manner.
At the time of the grant of service connection for the
veteran's PTSD in November 1996, the RO assigned a 10 percent
disability evaluation pursuant to 38 C.F.R. § 4.132,
Diagnostic Code 9411 (1996), which was subsequently increased
to 50 percent. A 50 percent disability evaluation was
appropriate with evidence of considerable impairment in the
ability to establish or maintain effective or favorable
relationships with people, and psychoneurotic symptoms that
result in reduced reliability, flexibility, and efficiency.
A 70 percent evaluation required evidence of symptomatology
sufficient to produce severe impairment of social and
industrial adaptability. See 38 C.F.R. § 4.132, Diagnostic
Code 9411 (1996).
According to the current regulations, effective November 7,
1996, a mental disorder should be evaluated "based on all
the evidence of record that bears on occupational and social
impairment . . . ." See 38 C.F.R. § 4.126(a) (2002). A 50
percent disability evaluation is assigned under this Code for
occupational and social impairment due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment in
short-term and long-term memory (e.g., retention of only
highly learned material, forgetting to complete tasks);
impaired abstract thinking; disturbances of motivation and
mood; difficulty in establishing and maintaining effective
work and social relationships. See 38 C.F.R. § 4.130,
Diagnostic Code 9411. For the next higher 70 percent
evaluation to be warranted, there must be occupational and
social impairment with deficiencies in most areas, such as
work, school, family relations, judgment, thinking, or mood
due to symptoms such as: suicidal ideation; obsessive rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately, and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a work-like
setting); and an inability to establish and maintain
effective relationships. Id.
The Board has carefully reviewed the evidence of record, as
summarized above, and finds that for the reasons and bases
set forth below, and resolving all reasonable doubt in favor
of the veteran, the veteran's PTSD most closely approximates
the criteria for the currently assigned 50 percent rating,
under both the former and current versions of the rating
criteria. See 38 C.F.R. § 4.132, Diagnostic Code 9411
(1996); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2002).
Considering the veteran's service connected PTSD under the
former criteria for evaluating mental disorders, see
38 C.F.R. § 4.132, Diagnostic Code 9411 (1996), the Board
finds that the evidence is consistent with the currently
assigned 50 percent rating, and that an increased disability
evaluation is not warranted. The objective clinical evidence
of record does not show that the veteran's PTSD symptoms
result in such impairment so as to prevent the establishment
and maintenance of effective relationships or produce such
psychoneurotic symptoms as to severely impair his ability to
obtain or retain employment. There is no evidence that the
veteran suffers from delusions, hallucinations, impaired
impulse control, or impaired thought process. Moreover, the
veteran was oriented and intelligent, with normal speech and
good hygiene. While the Board acknowledges that the veteran
experiences a depressed mood and severe social isolation, the
evidence does not indicate that the veteran is unable to
interact appropriately. The Board notes that the veteran has
been married for approximately thirty years, goes to church
regularly, and works well with his fellow employees.
Further, there is no evidence that the veteran manifests
psychoneurotic symptoms that isolate him totally.
Significantly, the veteran is able to obtain and retain
employment, as demonstrated by his current position in
commissioned sales. Moreover, the veteran's current
disability evaluation contemplates the veteran's reduced
productivity and social isolation. Thus, the Board finds
that a rating in excess of 50 percent for PTSD is not met
under the former criteria for evaluating mental disorders.
Additionally, the Board finds that the veteran's PTSD is most
consistent with the currently assigned 50 percent disability
evaluation and that an increased disability evaluation is not
warranted upon reviewing the current rating criteria, see
38 C.F.R. § 4.130, Diagnostic Code 9411, in relation to the
veteran's PTSD symptomatology. The objective clinical
evidence of record does not show that the veteran experiences
occupational impairment, obsessive rituals, incoherent
speech, near-continuous panic, impaired impulse control,
spatial disorientation, or an inability to function
independently. There was also no evidence of delusions,
hallucinations, impaired thought processes, panic attacks,
hopelessness, or psychosis. In addition, the veteran was
well groomed and cooperative, with clear and logical speech,
intact memory, and intact judgment. Furthermore, the Board
notes that the veteran has been married for approximately
thirty years, held the same job since 1998, and worked in
sales for the time period before that. And, while the
examination reports noted that the veteran had a depressed
mood, irritability, sleep impairment, hypervigilance, and
occasional suicidal ideation, these symptoms are contemplated
by the veteran's 50 percent disability evaluation. As such,
the veteran's symptomatology most closely fits within the
criteria for the currently assigned 50 percent evaluation.
The Board acknowledges that there is some conflict as to the
veteran's GAF score, as the veteran's treating physicians
assigned GAF scores of 50 to 65 and the VA examiner assigned
GAF scores of 38 and 40. According to Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition (DSM
IV), GAF scores of 31 to 40 are indicative of some impairment
in reality testing or communication (with illogical and
obscure speech) or major impairment in several areas,
including work, family relations, judgment, thinking or mood.
GAF scores of 41 to 50 are indicative of serious impairment
in social or occupational functioning (suicidal ideation or
social isolation) and GAF scores of 51 to 60 are indicative
of moderate difficulty in social and occupational functioning
(flat affect and few friends). See 38 C.F.R. § 4.130. A GAF
score of 40, without symptomatology consistent with that
required for the next higher disability evaluation, is
insufficient to warrant an increased evaluation. The Board
notes that the veteran's GAF score of 40 appears to have been
assigned on the basis of his degree of social impairment, and
that the veteran does not otherwise meet the criteria for an
increased disability evaluation. As discussed earlier, the
veteran has clear speech and his only major impairment is his
lack of a social circle. Likewise, the veteran's GAF scores,
as assigned by his treating providers are more consistently
in the range of 50 to 55. As such, the Board finds that the
veteran's disability picture more nearly approximates the
criteria for a 50 percent disability evaluation.
Finally, the Board has also considered whether the veteran
might be entitled to an increased disability evaluation on an
extra-schedular basis. However, the Board concludes that the
record does not present such "an exceptional or unusual
disability picture as to render impractical the application
of the regular rating schedule standards." See 38 C.F.R.
§ 3.321(b)(1). In this regard, the Board finds that there
has been no showing by the veteran that his PTSD disorder,
standing alone, resulted in marked interference with
employment or necessitated frequent periods of
hospitalization so as to render impractical the application
of normal rating schedule standards. The Board notes that
the veteran has not required hospitalization for his PTSD, is
currently employed, and that the veteran has not reported
missing work due to his PTSD. Accordingly, the Board finds
that the criteria for submission for assignment of an extra-
schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) have not
been met.
In conclusion, the Board finds that the preponderance of the
evidence is against the finding of entitlement to an
increased rating for PTSD, on either a schedular or an extra-
schedular basis. The appeal is denied.
ORDER
An initial evaluation in excess of 50 percent for PTSD is
denied.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.